Filed 6/27/24 Ramos v. Oros CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MARY RAMOS et al.,

Plaintiffs and Appellants,

v.

BRETT M. OROS,

Defendant and Respondent.

 B330395

 (Los Angeles County

 Super. Ct. No. 19STCV16075)

APPEAL from an order of the Superior Court of 

Los Angeles County, Daniel M. Crowley, Judge. Reversed. 

Law Offices of Robin E. Paley, Robin E. Paley and Shivali 

Kasbekar for Plaintiffs and Appellants.

Ford, Walker, Haggerty & Behar, Neil Tardiff and 

Robert Lee Reisinger for Defendant and Respondent.

____________________________
2

This appeal is from an order vacating entry of default and 

default judgment. Defendant submitted evidence to support his 

argument that he was never served with the summons. Plaintiffs 

countered with evidence he was served. The trial court neither 

resolved this credibility dispute nor considered whether the 

judgment was void for lack of jurisdiction in the event defendant 

was never served.

Instead, the trial court vacated the default and default 

judgment pursuant to Code of Civil Procedure1 section 473.5. 

Section 473.5 applies when the someone was served, but “service 

of a summons has not resulted in actual notice.” (§ 473.5, 

subd. (a).) Section 473.5, however, does not apply when the 

defendant was never served. Defendant did not claim below or on 

appeal that he was ever served. 

We conclude the trial court applied the wrong statute and 

thus abused its discretion in vacating the entry of default and 

default judgment. We reverse and remand because the analytic 

fulcrum of the parties’ respective arguments balances on a 

credibility determination the trial court did not make and we 

decline to make that determination in the first instance. 

BACKGROUND

On May 8, 2019, Mary Ramos and Antonio Baker 

(plaintiffs) filed a complaint against Brett M. Oros (defendant) 

alleging causes of action for motor vehicle and general negligence.

Plaintiffs alleged defendant “ran a red light” and caused a motor 

vehicle collision. (Capitalization omitted.) 

1 Undesignated statutory citations are to the Code of Civil 

Procedure. 
3

On February 18, 2020, plaintiffs requested entry of default. 

The clerk rejected that request for entry of default because there 

was no telephone number for the process server and because the 

default was filed “premature[ly].” The clerk required plaintiffs to 

file a new proof of service.

On March 26, 2020, Marshal Holly Bryk signed a proof of 

service indicating that on March 18, 2020 at 6:34 p.m., she 

personally served the summons and complaint on defendant at 

an address on George Street in North Haven, Connecticut. This 

is the only proof of service upon which plaintiffs rely and 

defendant asserts he never received. According to the proof of 

service, Bryk served defendant “[w]ho accepted service, with 

Identity confirmed by subject saying yes when named, a white 

male approx. 25-35 years of age, 6’0”-6’2” tall, weighing 

180-200 lbs with brown hair.” (Boldface omitted.)

On July 1, 2020, plaintiffs again requested entry of default. 

Plaintiffs’ counsel declared under penalty of perjury that she 

mailed the request for entry of default to defendant at the George 

Street address. The clerk entered default.

On December 14, 2020, plaintiffs requested entry of a 

default judgment in the amount of $212,484.90. The request for 

entry of default judgment was “not mailed” to defendant “whose 

addresses are unknown to plaintiff or plaintiff’s attorney.” 

(Boldface omitted.)

The court rejected plaintiffs’ July 1, 2020 request for entry 

of default judgment; plaintiffs filed another such request on 

November 24, 2021 seeking $212,447 in damages. Again, the 

request for entry of default judgment was not mailed to 

defendant because, according to plaintiffs, his address was 

unknown.
4

The court entered judgment by default on March 23, 2022 

in the amount of $212,447.

On September 22, 2022, defendant filed a motion to set 

aside the default and default judgment. Defendant cited 

sections 473, 473.5, and the court’s equitable power to set aside a 

default and default judgment. Defendant’s claim was that “[o]n 

the date of alleged personal service, March 18, 2020, Defendant 

was not personally served with the Complaint.” Among other 

things, defendant argued there is a “policy favoring trial on the 

merits” and pursuant to this policy, “doubts are resolved in favor 

of the application for relief from default.”

In a declaration in support of his motion, defendant 

represented that from November of 2018 through August of 2021,

he lived in Wallingford, Connecticut. Defendant stated he did not 

live at the George Street address on March 18, 2020; instead, his 

mother lived there. Defendant also stated he “was not personally 

served with the Complaint” and was not at the George Street 

address on March 18, 2020, the date Bryk purported to have 

served him. Defendant added that that he was a United States 

Marine, stationed in Hartford, Connecticut in March of 2020. He 

added that he worked 10 to 14 hour days and routinely drove to 

Massachusetts. Defendant further averred that in March of 

2020, his wife was pregnant, and in June of 2020, his wife was 

hospitalized with complications. Defendant stated he has never 

been involved in litigation and did not know he had to file an 

answer in the current litigation when he was not “personally 

served with the Complaint on March 18, 2020.” According to 

defendant, he learned about the lawsuit for the first time in 

September 2023, when his attorney called him after the default 

judgment had been entered.
5

Plaintiffs opposed the motion, arguing that defendant 

did not show he was not personally served with the complaint. 

Plaintiffs contended defendant was personally served as reflected 

in the proof of service signed by Bryk. Bryk’s declaration in 

support of plaintiffs’ opposition stated that she is a sworn peace 

officer and duly appointed Connecticut State Marshal. She 

stated she personally served defendant on March 18, 2020 and 

that defendant identified himself as Brett M. Oros. In a 

declaration, Ramos averred Bryk’s description of defendant “is 

accurate.” Ramos described defendant as “a white male with 

brown hair. He is approximately six feet tall or a little over and 

well-built.” Baker also filed a declaration in which he described 

defendant as “a white male with dark hair. He is tall, standing 

over six feet, and well-built.” He described defendant as 

appearing about 25 years old at the time of the accident. A traffic 

collision report attached to the opposition identifies defendant’s 

address as the George Street address and describes him as a 

white male.

In support of his reply, defendant submitted a second 

declaration reiterating that on March 18, 2020, he did not live at 

the George Street address. On that date, he was at his home 

with his pregnant wife and they were “taking precautions against 

the Covid-19 pandemic. I [defendant] did not want my wife and 

unborn child to get sick.” Defendant also stated that on 

March 18, 2020, he was not served at his mother’s home. 

Defendant further claimed that in March 2020, his mother was in 

a romantic relationship with a “man of similar height and 

build . . . .” Defendant again stated that in March 2020, he was a 

United States Marine stationed in Hartford, Connecticut.
6

Defendant reiterated he did not learn of the lawsuit until 

September 2022 when his attorney contacted him.

The court granted defendant’s motion and vacated entry of 

default and default judgment. The trial court reasoned in its 

minute order: “CCP § 473.5 provides that if service of a 

summon[s] has not result[ed] in actual notice to a party, said 

party may file a notice of motion to set aside default within a 

reasonable time. A reasonable time is considered to be either the 

two years after entry of default judgment or 180 days of receiving 

notice of default, whichever comes first.” The court further 

explained: “Defendant has provided a proper declaration 

attesting that he was never served; there is a general policy that 

doubts are resolved in favor of the party seeking to set aside the 

default.” The court cited Waite v. Southern Pacific Co. (1923) 

192 Cal. 467 (Waite) in which our high court stated, “It is also 

well established that it is the policy of the law to bring about a 

trial on the merits wherever possible, so that any doubts which 

may exist should be resolved in favor of the application, to the 

end of securing a trial upon the merits.”

2 (Waite, at pp. 470–471.) 

The court’s minute order shows that the parties appeared at a 

hearing that was not reported, and our record does not include a 

settled statement. 

2 Waite involved a motion under section 473 for relief from 

default on the ground that in filing its answer in federal court, 

defendant mistakenly believed that the federal court, and not the 

state court, had jurisdiction over the case. (Waite, supra, 

192 Cal. at p. 469.) 
7

DISCUSSION

We review the order granting the motion to set aside the 

default and default judgment for abuse of discretion. (Luxury 

Asset Lending, LLC v. Philadelphia Television Network, Inc. 

(2020) 56 Cal.App.5th 894, 907 (Luxury Asset Lending).) 

The parties dispute whether section 473.5 applies. 

Defendant argues section 473.5 applies and that the evidence 

demonstrates he satisfied all that statute’s requirements. 

Defendant further asserts we can infer “the trial court found: 

1) that service of the summons did not result in actual notice to 

the Defendant in time to defend [citation]; 2) that the motion was 

made in a timely manner [citation]; . . . 3) that the declarations of 

the Defendant established that the lack of notice was not caused 

by his avoidance of service or excusable neglect [citation;] and 

4) that the Defendant has a meritorious defense to the action.” 

Defendant further argues even if section 473.5 does not apply, 

this court may set aside the default and default judgment based 

on equitable principles. 

We conclude the trial court erred in relying on section 

473.5, which is inapplicable to a defendant who claims he was not 

served at all. We need not consider whether defendant satisfied 

the requirements for section 473.5 relief because that statute is 

inapplicable on its face. We further conclude the trial court must 

resolve the credibility dispute over whether defendant was served 

before considering equitable or other statutory grounds for relief 

from the entry of default and default judgment. 
8

A. The Trial Court Erred In Applying Section 473.5 to 

Defendant’s Claim That He Was Never Served With 

the Summons

Section 473.5 provides in pertinent part: “When service of 

a summons has not resulted in actual notice to a party in time to 

defend the action and a default or default judgment has been 

entered against him or her in the action, he or she may serve and 

file a notice of motion to set aside the default or default judgment 

and for leave to defend the action.” (§ 473.5, subd. (a).) 

The plain language of section 473.5 demonstrates that it 

applies “[w]hen service of a summons has not resulted in actual 

notice.” (§ 473.5, subd. (a).) The phrase “when service” indicates 

that service of the summons occurred. Put differently, a 

defendant who was served but did not receive actual notice may 

request relief under this statute. As stated in Luxury Asset 

Lending, supra, 56 Cal.App.5th at p. 908, “[s]ection 473.5 

provides relief from default or default judgment to those 

defendants who, despite proper service, never received ‘actual 

notice’ of the lawsuit in time to defend against it.” The typical 

case under section 473.5 “involves constructive or substitute 

service” when the trial court “has acquired jurisdiction over a 

defendant by proper service of the summons, but that service has 

not resulted in actual notice to the defendant . . . .” (Cal. Judges 

Benchbook: Civil Proceedings—After Trial (CJER 2017) § 1.36.) 

The issue before us is not whether Bryk’s service of the 

summons (assuming it occurred) failed to give defendant actual 

notice. Instead, defendant claims Byrk never served him and 

intimates Bryk may have served his mother’s romantic partner. 

To repeat, defendant asserted below and on appeal he was never 

served and plaintiffs assert Bryk personally served defendant. 
9

Defendant makes no claim that such personal service failed to 

provide actual notice to him. Accordingly, the trial court erred in 

relying on section 473.5 to vacate entry of default and default 

judgment. By applying the wrong statute in evaluating whether 

to vacate the entry of default and default judgment, the trial 

court abused its discretion. (Waterwood Enterprises, LLC v. City 

of Long Beach (2020) 58 Cal.App.5th 955, 968 [“A trial court 

abuses its discretion when it applies the wrong legal standard.”].)

B. Remand Is Necessary for the Trial Court To Make 

the Required Credibility Determination as to 

Whether Defendant Was Served and If So Whether 

To Vacate the Default and Default Judgment

The law provides avenues of relief when a defendant is not 

served with a summons. For example, “if a default judgment was 

entered against a defendant who was not served with a summons 

as required by statute, the judgment is void, as the court lacked 

jurisdiction in a fundamental sense over the party and lacked 

authority to enter judgment.” (Kremerman v. White (2021) 

71 Cal.App.5th 358, 370; see OC Interior Services, LLC v. 

Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1330; Dill 

v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) 

“Under section 473, subdivision (d), the court may set aside a 

default judgment which is valid on its face, but void, as a matter 

of law, due to improper service.” (Ellard v. Conway (2001) 

94 Cal.App.4th 540, 544; see also Sakaguchi v. Sakaguchi (2009) 

173 Cal.App.4th 852, 858.) Under section 473, subdivision (b), a 

court may set aside judgment on the ground of fraud or mistake. 

(Marriage of Park (1980) 27 Cal.3d 337, 342.) In addition, a trial 

court may vacate a judgment on equitable grounds when 
10

statutory relief is unavailable. (Luxury Asset Lending, supra, 

56 Cal.App.5th at p. 910.) 

We cannot assess whether these avenues are available to 

defendant because the trial court did not make a finding as to 

whether defendant was served. The court’s only analysis in our 

record is in its minute order, which recites: “Defendant has 

provided a proper declaration attesting that he was never served; 

there is a general policy that doubts are resolved in favor of the 

party seeking to set aside the default.” Defendant does not argue 

the court’s minute order reflects a finding that the court credited 

defendant’s evidence supporting he was not served.3 At best, it 

appears the court found defendant’s declaration was “proper,” not 

that the court was crediting defendant’s as opposed to plaintiffs’ 

evidence as to service. The court’s reliance on Waite further 

suggests the trial court relied on the policy favoring a trial on the 

merits without resolving the fundamental credibility dispute. 

(See fn. 2, ante.)

Notwithstanding the general rule that an appellate court 

defers to a trial court’s credibility determinations,4 we cannot 

defer to a credibility finding the trial court never made. Although 

defendant argues we can conclude the default judgment should 

be set aside on equitable grounds, his argument depends on a 

finding that he was never served. Specifically, he contends his 

declarations show he “was either mistakenly or intentionally not 

3 Defendant also does not argue that the court made such a 

finding at the hearing, which was not recorded. 

4 (See Niko v. Foreman (2006) 144 Cal.App.4th 344, 365 

[“ ‘Credibility is a matter within the trial court’s discretion,’ and 

the reviewing court must defer to the trial court’s findings on 

credibility issues.”].)
11

served and that the defendant did not learn of the lawsuit” until 

his attorney called him. Because the trial court made no such 

findings, we remand the case for the trial court to consider anew 

whether to vacate the default and default judgment. 

Our opinion should not be interpreted to limit the parties’ 

arguments on remand; we have addressed only the issues 

dispositive to this appeal.5 Our opinion also should not be 

interpreted to limit the trial court’s discretion upon remand, and 

we express no opinion on how the trial court should rule. 

5 The parties make additional arguments that we do not 

address given our conclusions in the text. For example, our 

conclusion that section 473.5 does not apply when defendant 

claims he never was served makes it unnecessary for us to 

address plaintiffs’ claim that 473.5 does not apply when a 

defendant is personally served with the summons. Plaintiffs 

argue the trial court erred in resolving “factual doubts” in favor of 

defendant. Our record does not show the court resolved “factual” 

issues at all as to whether defendant was served. Defendant 

argues he proved the requirements of section 473.5 by a 

preponderance of the evidence. This argument does not assist 

him because we have concluded section 473.5 does not apply to 

begin with. 
12

DISPOSITION

The order vacating the default and default judgment is 

reversed. The case is remanded for further proceedings 

consistent with this opinion. Mary Ramos and Antonio Baker are 

entitled to costs on appeal. 

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.